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In the Matter of Alaric Osorio v. Brian Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


September 22, 2011

IN THE MATTER OF ALARIC OSORIO, PETITIONER,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: July 27, 2011

Before: Peters, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which found petitioner guilty of violating certain prison disciplinary rules.

Petitioner was charged in a misbehavior report with smuggling, conspiring to sell drugs and forwarding calls to third parties. Following a tier III disciplinary hearing, he was found guilty of the charges and the determination was affirmed on administrative appeal. This CPLR article 78 proceeding ensued.

Petitioner pleaded guilty to forwarding calls to third parties. Therefore, he is precluded from challenging the part of the determination finding him guilty of this charge (see Matter of Correnti v Fischer, 83 AD3d 1354, 1354 [2011]; Matter of Martinez v Fischer, 82 AD3d 1380, 1380 [2011]). As for the remaining charges, respondent concedes that substantial evidence does not support the determination of guilt and that the determination must be annulled to that extent. Upon reviewing the record, we agree. Inasmuch as a loss of good time was imposed, however, the matter must be remitted to respondent for a reassessment of the penalty on the remaining charge (see Matter of Minton v Fischer, 73 AD3d 1347, 1348 [2010], appeal dismissed 15 NY3d 848 [2010]). Petitioner's further claim that the Hearing Officer was biased is not substantiated by the record and there is no indication that the determination flowed from any alleged bias (see Matter of Hernandez v Fischer, 79 AD3d 1544, 1546 [2010], lv denied 16 NY3d 710 [2011]; Matter of Wilcox v Fischer, 78 AD3d 1394, 1395 [2010]).

Peters, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur.

ADJUDGED that the determination is modified, without costs, by annulling so much thereof as found petitioner guilty of smuggling and conspiring to sell drugs and imposed a penalty; petition granted to that extent, respondent is directed to expunge all references thereto from petitioner's institutional record and matter remitted to respondent for an administrative redetermination of the penalty on the remaining violation; and, as so modified, confirmed.

ENTER:

Robert D. Mayberger Clerk of the Court

20110922

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